https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10970

Wanyonyi v Republic (Criminal Appeal 23 of 2017) [2026] KEHC 10970 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10970 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Appeal 23 of 2017 JC Mutai, J July 16, 2026 Between Kennedy Wafula Wanyonyi Appellant and Republic Respondent Judgment A. Introduction 1.The Appellant, Kennedy Wafula Wanyonyi, was convicted after trial of defilement contrary to Section 8(1) as read with Section 8 (3) of the Sexual Offences Act, No 3 of 2006. He was charged with an alternative charge of actively committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, No. 3 of 2006. 2.The particulars of Count I are that on the 7th day of July 2014 at [Particulars Withheld] within Bungoma County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of. M. K a child aged 8 years, alternatively that on the same date and place, the accused intentionally and unlawfully touched the vagina of M. K. a child of 8 years using his penis against her will. 3.The particulars of Count II were that on the same date and place, the accused intentionally and unlawfully caused his penis to penetrate the vagina of J. N. a child of 8 years. Alternatively, on the same date and place the accused intentionally and unlawfully touched the vagina of J. N. a child aged 8 years against her will. 4.On 10/02/20, the Appellant was sentenced to life imprisonment on both counts. However, the trial Magistrate suspended the imprisonment in Count II so that the Appellant serves life imprisonment in Count I only. 5.Being dissatisfied with the conviction and the sentence, the Appellant lodged this appeal against both the conviction and the sentence vide an Amended Petition of Appeal dated 19/02/2024. The conviction and the sentence are being challenged on the following grounds;i.The learned trial magistrate erred in law by imposing the provided mandatory sentence of life imprisonment but failed to note that the Appellant was a first offender and a young man and the Court should have awarded a definite sentence in consideration of the provisions of Section 216 and 329 of the Criminal Procedure Code and Article 50(1) (2)(p) of the Constitution.ii.The learned trial magistrate erred by convicting the Appellant in a prosecution case but failed to consider the evidence of the minors were not corroborated and acting on uncorroborated evidence of the minors.iii.The learned trial magistrate erred in law by failing to note that the charge of defilement was not proved as against the Appellant yet he concluded by awarding the conviction of a life sentence.iv.The learned trial erred in law by convicting the Appellant but failing to note the Appellant’s defence that there was an existing grudge between him and PW3 thus this brought about doubt on the credibility of the evidence. 6.The Appellant urged this Court to allow the appeal, quash the conviction, set aside the sentence and be set at liberty or reevaluate the evidence and make an independent finding on both the conviction and proper sentence. 7.The appeal was canvassed by way of written submissions. B. The Duty Of This Court 8.This being the first appellate court, my duty is well settled: to re-evaluate the evidence tendered before the trial court and subject it to a fresh and exhaustive analysis so as to reach an independent conclusion on the conviction and sentence, while always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence, and giving due allowance for that advantage. This principle was set out by the Court of Appeal in Okeno v Republic [1972] EA 32, and has been consistently applied by this Court and the Court of Appeal since. 9.In compliance with this duty, I have read and considered the evidence as recorded at the trial court in its entirety, together with the applicable statutory and constitutional provisions, the submissions of both parties, and the case law cited, bearing in mind throughout that I neither saw nor heard the witnesses testify. 10.A good point to start from would then be a recap of the evidence adduced at the trial court. C. Summary Of The Evidence 11.At the beginning of the trial, the trial court conducted voire dire on PW1 and she confirmed that she knows the consequences of lying and could tell the difference between the truth and a lie. The trial magistrate being satisfied, the witness took the stand and testified. The evidence before the trial Court was as follows; PW1, the first complainant M. L. said she stays behind [Particulars Withheld] Primary School and lived with her aunt called DM. Her father died and her mother went to Uganda. She has a cousin called J. N and she attended [Name Withheld] Primary and was in class 2 going to class 3. Her aunt goes to work till 4:00pm and leaves them alone in the house. They would go into the house at 6:00pm and lock the door after playing if the mom (aunt) is not around. She was alone with her cousin on 7th July 2014 at around 8:00pm and had already slept. 12.The Appellant (she pointed at him) who was a neighbour, came to ask for a charger for the phone. She opened the door and the Appellant walked in and switched on the TV. He sat on the chair and started to watch “Mara Cruz””. She was with J.N who was on the floor. The Appellant switched off the TV and the lights and carried her to her mother’s bed and removed a full dress she had on. 13.While on the bed the Appellant tied her hands and legs using a rope and placed a cloth in her mouth. She didn’t see the rope before switching off the lights. The Appellant spread the sweater on her mother’s bed and then started to do “tabia mbaya” on her. The Appellant inserted something on her private parts and she didn’t know what it was. He didn’t remove his trouser. He removed his pants, spread her legs apart with the rope, he tied one side of her leg on one post of the bed and the other leg on the other post of the bed. Both legs were spread apart and tied with a rope on the bed posts. She then felt something go inside her private parts which she uses to urinate. 14.She felt a lot of pain and blood came out. The Appellant used the torch of his phone to look into her private parts. He took about five minutes to do “tabia mbaya” on her and used is sweater to wipe her private parts once he was done. Blood was oozing but he wiped the blood. The Appellant then dressed her and told her to go to the bathroom. The Appellant took a knife from the kitchen and threatened her with it after he was finished. The Appellant removed the rope on her hands and legs and told her to go and sleep. 15.The Appellant called PW2 and said “J, kuja hapa”. She followed J. N. and saw her legs being tied apart with a rope and put a cloth in her mouth. The Appellant did not lock the bedroom and M. K. stated that she saw what the Appellant was doing. She left to go to the bedroom and slept. J. N. woke her up and it was still night. The Appellant took the charger and told J. N. to lock the door behind him. M. L. stated that the lights were on and she could see what was going on when the Appellant was tying J. N. She used the light reflection for their bedroom. They closed the door and went to sleep. 16.M.L. stated that their mother arrived in the morning at around 3:00am and did not tell her anything because the Appellant had warned her that he would slaughter them. They showered and went to school as usual. When they came back from school the Appellant gave them sweets. They told the mother of the incident on Tuesday and were taken to hospital. They were treated and the pain reduced. 17.PW1 further testified that she gave her statement and stated that the Appellant was her neighbour and had been her neighbour since she was in class 1. The Appellant was living with his sister who is her aunt’s friend. He came for the charger based on the friendship between the Appellant’s sister and PW1’s mother (aunt). 18.On cross examination PW1 reiterated her evidence and stated that the Appellant watched TV until 8:00pm, finished with her then went to J. N. carried her to her mother’s bed placed a cloth on her mouth so she doesn’t scream, called J. N. and tied her and placed a cloth on her mouth and when he was finished, threatened her with a knife from their kitchen. 19.The trial court conducted voire dire on PW2 and she confirmed that she knows the consequences of lying and could tell the difference between the truth and a lie. The trial magistrate being satisfied, the witness took the stand and testified. The evidence before the trial Court was as follows; PW2, the second complainant, J. N. testified that she lives with her mother and her cousin, PW1 and have lived with her from nursery. On 7th July 2014 the Appellant knocked the door, PW1 opened the door and he asked for a charger. He switched on the TV and watched news and switched the lights off. 20.The Appellant carried her and placed her on her mother’s bed he removed her clothes and did “tabia mbaya” on her. He tied her legs and placed a cloth on her mouth. She felt something on her private parts where she urinates from. He placed his “dudu” on her, the one he uses to urinate. The Appellant inserted his “dudu” inside her and he took about 5 minutes. When he was done he wiped her with his sweater and switched on the lights. The lights were off when he was doing it. 21.PW2 further testified that she saw some mucus whitish on his sweater. The Appellant removed her clothes, which was a skirt and panty and he removed his trouser and pant. He also had a tee shirt. After he was done he went to the kitchen and brought a knife and threated to slaughter her if he told her mother. He left the bedroom and PW1 was in the bedroom when he was doing that to her. She testified that the Appellant also did bad manners to PW1. He left and closed the door. She did not tell her mother what happened because she was scared of the knife. She told her mother after two days. 22.She testified that she told her mother who told one Christine who is a neighbour and they went and found the Appellant who was confronted by Christine and he denied defiling them. She was then taken to hospital where she testified to have been tested and given medicine. She never saw the Appellant after that. 23.On cross examination, PW2 reiterated her testimony and stated that the Appellant was watch “Maria Cruz” and that the Appellant switched off the lights and took PW1 to the bedroom. She further stated that M. L. told her that the Appellant did “tabia mbaya” to her and that the Appellant used the sweater he was wearing to wiper her. She said the once the Appellant was done with M. L. he came for her. She did not tell her mother because she was afraid the Appellant would slaughter her. 24.PW3, DM testified that on 12th July 2014 while in the house, PW1 told her she had something to tell her. PW1 told her that the Appellant came to knock on the door on 7th July 2014 at 8:00pm and asked for a charger and watch TV, “Maria Cruz”. The Appellant switched off the TV and took PW1 to the bedroom and defiled her. The two minors sleep on a mattress on the floor and she sleeps on the bed. She further told her that when he was done with her, the Appellant defiled PW2. PW1’s stomach was aching and that is why she told PW3. 25.She went to see the Appellant’s sister and told her of the incident. That was on 13th July 2014 at around 10:00am. The two children narrated the incident to the Appellant’s sister in the presence of the Appellant and the minors were taken to hospital and were checked on 17th July 2014 and were assessed on 18th July 2014. On assessment of their dental formular, they were found to be 8 years old. They were recommended for laboratory tests and were given medicine. 26.She reported to the police on 17th July 2014 and was issued with a P3 form. Which were filled by the doctor and she was escorted by PC Susan. She was informed by the doctor that J. N. has puss coming and M. L was injured on her pelvis. She further testified that the Appellant sent her abusive messages and told her she won’t take him anywhere’. She confirmed knowing the Appellant and his sister as they were neighbours and did not have an affair with the Appellant. 27.On cross examination, PW3 stated that the Appellant was arrested over offensive messages and stated that the Appellant raped her children and the Appellant got annoyed hence the offensive messages. She further reiterated that the Appellant stayed at his sister’s house and he stated that she did not have an affair with the Appellant. She confirmed being friends with the Appellant’s sister. 28.PW4, Gladys Adola testified that she is a Clinical Officer at Bungoma District Hospital. She filled the two P3 forms. She filled them on 21st July 2014 and stated that J.N. had been defiled by someone who went to her house at around 8:00pm while the mother was not there. PW2 informed her that the Appellant urinated white urine on her and cleaned it with a sweater. At that time 14 days had passed. The hymen was partial and there was whitish discharge, pain around the vagina and white smelling discharge. 29.She testified that samples were taken to the lab and there was puss and a conclusion that PW2 was defiled. The P3 confirmed partial penetration. PW2 was treated and she produced the treatment card and the P3 form. She further testified that a dental check was done by one Mr. Wanyama whom she had known for 10 years and he found that PW2 was 8 years old. 30.Similarly she had the P3 form for PW1. PW1 told her that someone had defiled her though she had no bodily injuries but there was no hymen. She confirmed penetration and PW1 had been treated 4 times in respect of the defilement. She confirms that PW1 was 8 years old and produced treatment notes as well as the age assessment form from Mr. Wanyama. 31.On cross examination, she reiterated that PW2 had pain on her private parts with a partial hymen and had an infection that discharged puss and was foul smelling. She ws satisfied from the history that PW2 was defiled and semen cannot be found after 12 hours. She reiterated PW2’s testimony that the Appellant urinated a whitish urine on her and wiped it. PW2 was treated with antibiotics and further confirmed that PW1 had no hymen. 32.She further stated that hymen can be broken from a fall off a tree by that PW1 had no injuries in any other part of her body apart from the broken hymen that was established. 33.PW5, Corporal Susan Nyaboke No. 836978, a gender and children’s officer. She testified that on 17th July 2014 at around 12:00hrs she was at the office when a lady came accompanied by 2 girls. She was informed by PW3 that the girls were her daughters and both aged 8 had been defiled and the incident took long to report. The incident took place on 7th July 2014 and the girls had been taken to hospital and treated. The two girls had the same story and proceeded to reiterate the same as stated above. 34.She further stated that PW3 had received threatening messages from the Appellant and the Appellant was charged with misuse of communication gadget. He pleaded guilty to the offence and was sentenced. 35.That was the totality of the evidence by the prosecution. The learned trial magistrate found that the prosecution had established a prima facie case and put the Appellant on his defence. He opted to give unsworn evidence where he stated that on 19th July 2014 at around 8:30 he met three people who arrested him and taken to Kanduyi AP camp. He was informed that he had offended PW3. He said he had sent her messages on phone and she wanted him to compensate her. He was kept in custody for 3 days and he did not have money. He was charged and sentenced to pay a fine of Kshs. 20,000/= or 6 months imprisonment. 36.The Appellant further testified that he spent two months in prison and was called to the docks and asked which offence he had and said that he was told he got other cases for taking plea on 19th September 2014. He was brought to court and took plea that he had committed the offense of defilement. He stated that he had issued with PW3, they were lovers and used the children to as a fine to him. 37.The Appellant testified that he had known PW3 for two years and they started having issues because she got a job as a bar maid, which he did not like. He went back to their home but PW3 asked why he no longer came over. That she doesn’t see him. The Appellant further stated that PW3 told him his cheekiness will be over and further told him that if he is seen at Kanduyi he will see and that was when he abused her on phone. Had it not been for the phone messages, he would not have had the case. 38.He further testified that he had lived with PW3 in her house for 2 years and never defiled the children. He even accompanied her to her home in Uganda and she has also visited his home. 39.The learned magistrate analysed the evidence before the Court and established that the ingredients for a charge of defilement had been met and proceeded to convict the Appellant and sentenced him to life imprisonment. The sentence was lawful and mandatory. 40.In compliance with the legal dictate to re-evaluate the evidence, I have taken time to read and consider the evidence as recorded at the trial court. In doing so, I have borne in mind that I neither saw nor heard the witnesses testify and I have given due allowance for that fact. I shall therefore rely wholly on what was recorded both handwritten and typed and in the event of any discrepancy, I shall rely on the handwritten text. 41.In addition, I have had due regard to the applicable statutory and constitutional provisions, learned submissions by counsel for the state as well as the Appellant’s submissions and the case law cited. 42.After going through the evidence on record, the proceedings and the submissions tendered, I find the following issue emerges:- D. Analysis And Determination 43.Having considered the grounds of appeal, the evidence on record, and the submissions of the parties, I am satisfied that this appeal raises three issues for determination: first, whether the prosecution proved the offence of defilement against the Appellant beyond reasonable doubt in respect of both complainants; second, whether the Appellant's defence, and in particular the alleged grudge with PW3, raises a reasonable doubt as to his guilt; and third, whether the sentence of life imprisonment was lawfully imposed. Whether the Prosecution Proved the Offence of Defilement Beyond Reasonable Doubt 44.The essential ingredients of the offence of defilement contrary to Section 8(1) of the Sexual Offences Act are the age of the complainant, proof of penetration, and positive identification of the perpetrator. I address each in turn in respect of both complainants. 45.As to age, PW4, the clinical officer, testified that both M.L. and J.N. were subjected to a dental formula assessment conducted by Mr. Wanyama, whom she had known professionally for ten years, and that both complainants were found to be 8 years of age. This evidence was not seriously challenged in cross-examination and I find no basis to disturb the trial court's finding that both complainants were 8 years old at the material time. 46.As to penetration, PW4 testified that upon examination, M.L. was found to have no hymen and had sustained no other bodily injury, a finding consistent with penetrative sexual contact rather than an accidental cause; she further testified, upon a specific query raised in cross-examination, that while a hymen can in principle be broken through a fall, M.L. had no other injury anywhere on her body consistent with such a fall. As regards J.N., PW4 found a partial hymen, whitish discharge, pain around the vagina, and a foul-smelling discharge, and laboratory analysis confirmed the presence of pus, all of which she testified was consistent with defilement. Both findings were documented in the P3 forms produced in evidence, and PW4's clinical conclusions were not undermined in cross-examination. 47.As to identification, both complainants gave direct, detailed, and consistent oral testimony implicating the Appellant, a person well known to them as a neighbour of some years' standing. Prior to giving evidence, both PW1 and PW2, being of tender years, were subjected to voire dire examination by the trial court, and the trial Magistrate satisfied himself that each understood the consequences of lying and could distinguish truth from falsehood before permitting them to testify. Their accounts of the material night are substantially consistent with one another notwithstanding that they were examined separately: both describe the Appellant arriving to request a phone charger, watching television, switching off the lights, carrying each child in turn to the mother's bed, tying their limbs, threatening them with a knife from the kitchen, and warning them not to disclose the incident. Each child also gave a broadly consistent account of what she observed happening to the other, since neither incident occurred outside the other's presence within the same room. 48.I am mindful that Section 124 of the Evidence Act permits a court to convict on the evidence of a victim of a sexual offence alone, without the requirement of corroboration, provided the court believes the victim and records reasons for that belief. In the present case, however, the evidence goes well beyond the uncorroborated testimony of the two complainants. Their accounts are corroborated by that of PW3, the aunt with whom they resided, to whom recent complaint was made within days of the incident and who recounted a materially consistent narrative; and further corroborated by the independent clinical findings of PW4, which are consistent with penetrative sexual contact in respect of both children and inconsistent with the Appellant's suggestion, so far as one can be discerned from his defence, that nothing untoward occurred. The trial Magistrate was accordingly entitled to find, and I independently find upon my own re-evaluation of the record, that the evidence of both complainants was truthful, consistent, and amply corroborated. 49.I therefore find that the prosecution proved beyond reasonable doubt, in respect of both M.L. and J.N., that each was 8 years of age at the material time, that each was penetrated, and that the Appellant was positively identified by each as the perpetrator. Grounds (ii) and (iii) of the appeal accordingly fail. Whether the Alleged Grudge with PW3 Raises a Reasonable Doubt 50.The Appellant's defence, given as unsworn evidence, was in substance that he had been in an intimate relationship with PW3 for a period of two years, that the relationship soured after PW3 obtained employment as a bar maid, that he sent her abusive text messages for which he was separately charged, convicted, and fined under the Kenya Information and Communications Act, and that the present charges of defilement were fabricated by PW3 using her daughters as instruments of a fine or punishment against him arising from that separate dispute. 51.I have considered this defence with the care it deserves, given that an allegation of a motive to fabricate is always a matter requiring careful scrutiny in a case of this nature. However, the defence as advanced does not engage at all with the independent clinical evidence of PW4, nor does it offer any explanation for the physical findings of penetration, partial loss of hymen, and infection consistent with sexual contact in respect of both complainants. It is difficult to accept that PW3 could have fabricated, still less have induced two separate 8-year-old children to fabricate under voire dire and in cross-examination, a consistent, detailed account of a specific sequence of events extending over some time, corroborated by independent physical findings, purely as an act of retaliation arising from a dispute over threatening text messages. Nor did the Appellant offer any evidence, beyond his own assertion, that PW3 had the motive, opportunity, or capacity to procure the complicity of two young children in so serious and elaborate a fabrication. I find that the alleged grudge, even if the underlying dispute over the text messages is accepted as true, does not raise a reasonable doubt as to the Appellant's guilt on the totality of the evidence. Ground (iv) accordingly fails. Whether the Sentence of Life Imprisonment was Lawfully Imposed 52.The Appellant contends, under ground (i), that the trial Magistrate erred in imposing a mandatory sentence of life imprisonment without regard to his personal circumstances as a young first offender, and that a definite term ought to have been imposed having regard to Sections 216 and 329 of the Criminal Procedure Code and Article 50(1) and (2)(p) of the Constitution. 53.This ground requires this Court to state, with precision, the current state of the law on the constitutionality of the mandatory sentence prescribed by Section 8(2) of the Sexual Offences Act for defilement of a child aged 11 years or under. The law on this question has been the subject of divergent decisions in recent years, and it is necessary to set out the correct and currently binding position. 54.The Court of Appeal, in Julius Kitsao Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR), held the mandatory life sentence prescribed by Section 8(2) to be unconstitutional and substituted a determinate sentence of 40 years' imprisonment. However, this decision was reversed by the Supreme Court in Republic v Manyeso, Petition No. E013 of 2024, [2025] KESC. The Supreme Court held that the Court of Appeal had acted ultra vires in assuming original constitutional jurisdiction over an issue that had not been raised or canvassed at trial or before the High Court, and further held that courts have no power to substitute a sentence not provided for in the relevant sentencing provision, since to do so usurps the constitutional role of the Legislature and offends the doctrine of separation of powers. The Supreme Court reached a materially identical conclusion in Republic v Evans Nyamari Ayako, Petition No. E002 of 2024, reinstating a mandatory life sentence in place of a determinate 30-year term substituted by the Court of Appeal. 55.These Supreme Court decisions are binding on this Court pursuant to Article 163(7) of the Constitution, and they settle, at least for present purposes, the question raised by the Appellant. The mandatory sentence of life imprisonment prescribed by Section 8(2) of the Sexual Offences Act for defilement of a child aged 11 years or under remains a lawful sentence which this Court, sitting in its ordinary appellate jurisdiction, has no power to alter or substitute with a determinate term, however sympathetic the Appellant's personal circumstances as a young first offender may otherwise appear. 56.As to the Appellant's reliance on Sections 216 and 329 of the Criminal Procedure Code and Article 50(1) and (2)(p) of the Constitution, these provisions guarantee an accused person the right to be heard in mitigation before sentence is passed. That right was not denied to the Appellant; rather, the trial Magistrate, having heard whatever mitigation was placed before him, correctly recognised that the sentencing provision under which the Appellant fell to be sentenced left no room for a departure from the prescribed sentence. The right to be heard in mitigation is not a right to have that mitigation necessarily alter a sentence that the law does not permit the court to vary. 57.I am aware that a decision of the High Court, sitting in its Constitutional and Human Rights Division, has very recently addressed a related but narrower question — namely, whether an indefinite life sentence carrying no prospect of parole offends Articles 25 and 28 of the Constitution on grounds of human dignity, as distinct from the broader question of the constitutionality of Section 8(2) itself, which the Supreme Court has already conclusively determined. That decision arose in the context of a constitutional petition brought after the exhaustion of ordinary appellate remedies, a materially different procedural posture from the present appeal, and its relationship to the binding authority of the Supreme Court in Manyeso and Ayako has not, to this Court's knowledge, been settled by any appellate authority. I make no finding on that question, as it does not arise for determination in this appeal and is, in any event, a matter more appropriately raised, if at all, by way of a separate constitutional petition after the present appellate process has been exhausted, rather than within the confines of this ordinary criminal appeal. 58.I accordingly find that the sentence of life imprisonment imposed on the Appellant in respect of Count I was lawfully imposed, and ground (i) of the appeal fails. E. Conclusion And Orders 59.For the foregoing reasons, I find that the prosecution proved the offence of defilement beyond reasonable doubt in respect of both complainants, that the Appellant's defence does not raise a reasonable doubt as to his guilt, and that the sentence of life imprisonment imposed in respect of Count I was lawfully imposed in accordance with binding Supreme Court authority. 60.Accordingly, I make the following orders:i.The appeal against conviction is hereby dismissed.ii.The appeal against sentence is hereby dismissed.iii.The conviction on both counts of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, is hereby upheld.iv.The sentence of life imprisonment imposed in respect of Count I, and the suspension of sentence in respect of Count II, are hereby upheld in their entirety. DELIVERED AT KERICHO ON 16TH JULY 2026CHELANGAT MUTAIJUDGE16/7/2026In the presence of;Appellant – Kennedy WafulaC/A Irene Chelang’at